Federal Communications Commission FCC 99-123 Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Canyon Area Residents for the Environment ) Request for Review of Action Taken Under ) Delegated Authority on a Petition for ) an Environmental Impact Statement ) ) MEMORANDUM OPINION AND ORDER Adopted: May 27, 1999 Released: May 27, 1999 By the Commission: 1. The Commission has before it an Application for Review and related pleadings filed by the Canyon Area Residents for the Environment (CARE) seeking review of a letter ruling of October 9, 1998, by Dale Hatfield, Chief of the Office of Engineering and Technology (OET Letter), which denied CARE's request for a blanket prohibition on the siting of communications facilities on Lookout Mountain near Denver, Colorado, and denied CARE's proposal that the Commission adopt stricter limits on public exposure to radiofrequency (RF) radiation. 1 CARE's Application for Review was opposed by the Lake Cedar Group (LCG).2 For the reasons set forth below, we deny the Application for Review. I. BACKGROUND 2. LCG, a consortium of Denver, Colorado, television stations, has applied to Jefferson County, Colorado, for authority to construct a new multiple-use transmission tower on Lookout Mountain. Lookout Mountain is an "antenna farm" that for many years has been the location for transmitting towers used by many of the radio and television broadcast stations licensed to Denver and its surrounding areas. The LCG tower is the proposed location for the new digital television (DTV) facilities of six Denver television stations. In addition, several licensees of television stations in Denver plan to relocate their CARE subsequently submitted related and supplemental material to Commission staffdated April 30, 1998, May 18, 1998, August 25, 1998, September 10, 1998, November27, 1998, November 30, 1998, January 13, 1999, March 9, 1999, and March 19, 1999, respectively. In addition, CARE filed a letter with the Commission, dated April 6, 1999, objecting to the Commission's approval of an application for a digital television antenna for station KDVR on environmental grounds. Fox Television Stations, Inc., permittee ofKDVR, responded to CARE's objections in a letter, dated April 26, 1999. We believe that no new issues were raised in these additional filings that have not previously been raised, and we, therefore, will consider this material as part of the overall application for review discussed herein. 2 In letters, dated November 23, 1998, December 31, 1998, and March 25, 1999, LCG opposed CARE's Application for Review. By letter, dated April 16, 1999, CARE responded to LCG's opposition. · 8152 Federal Communications Commission FCC 99-123 current analog (NTSC) antennas to the LCG tower, as do a number of FM radio stations. The proposed common tower will immediately replace two existing towers, and other towers eventually will be consolidated on it. In 1997 and 1998, the six Denver television stations each filed applications with the Commission specifying the LCG tower as the site for their new DTV facilities. 3. In response to the DTV applications, on March 26, 1998, CARE filed a petition asking that the Commission take the following actions: (1) deny renewals to licensees with antennas located at the Lookout Mountain, Colorado, antenna site; (2) not approve any new antennas for the Lookout Mountain site including the DTV applications; and (3) adopt a new limit for human exposure to RF fields of 0.01 microwatts per centimeter squared (0.01 µW/cm 2) for transmitters located in residential areas. In its letter of May 18, 1998, CARE also asked the Commission to require all broadcasters on Lookout Mountain to perform "an environmental impact study pursuant to the National Environmental Policy Act (NEPA)." CARE's requests were based on concerns that the Commission's guidelines for human exposure to RF emissions, adopted in 1996, are not sufficiently protective of human health, and that the Lookout Mountain antennas were exposing nearby residents to unsafe levels of RF energy. 4. In response to CARE's petition, the OET Letter concluded that CARE's origiJ;lal petition did not contain factual evidence that transmitting stations located in the Lookout Mountain area were violating Commission rules. OET also concluded that CARE had not demonstrated that a blanket prohibition on siting of additional transmitters at Lookout Mountain was warranted. In addition, because the Commission's rulemaking concerning changes to the RF exposure limits had long since been concluded, CARE's proposal to establish new Commission exposure limits thousands of times stricter than current limits was judged untimely and without merit. Problems with CARE's interpretation of various measurement study reports and exposure assessment protocols were also documented, including misunderstandings of spatial averaging and of conclusions in the earlier studies conducted in the Lookout Mountain area. However, OET did conclude that more·recent evidence of RF levels on Lookout Mountain in excess of the Commission exposure limits indicated that a further investigation of the Lookout Mountain site was justified. Consequently, two subsequent measurement studies were performed at Lookout Mountain by Commission personnel. 5. On October 29, 1998, Commission staff conducted a measurement survey of RF exposure levels in publicly accessible areas at the Lookout Mountain site and determined that certain locations on Lookout Mountain exceeded the RF limits. See Summary of FCC Survey at Lookout Mountain Antenna Site, November 12, 1998. OET determined that the relatively high RF levels measured were largely the result of emissions from the antennas of five Denver FM radio stations. The Denver DTV applications could not be granted until the existing RF problem was corrected by the FM stations. At the recommendation of Commission staff, the FM stations subsequently voluntarily reduced their power and took other steps to temporarily eliminate the RF problem on Lookout Mountain. The FM stations also agreed to implement a more permanent solution, pending local approval, including the erection of fencing to prevent public access and exposure in the future. Based upon these actions, on December 2, 1998, and later on February 8, 1999, the staff granted the Denver DTV applications. CARE did not specifically seek reconsideration or review of those actions. Thereafter, OET staff revisited the Lookout Mountain site and confirmed that the remedial measures taken by the FM stations had been implemented and that the Lookout Mountain site was in compliance with RF guidelines. See Study Report of January 4, 1999. 6. In response to the OET Letter, CARE filed its Application for Review, dated November 5, 1998. In addition to certain procedural matters that we address below, CARE makes the following claims 8153 Federal Communications Commission FCC 99-123 and raises the following primary issues: (1) that measurement data indicate non-compliance with Commission exposure limits by broadcasters on Lookout Mountain; (2) that the Commission has violated the National Environmental Policy Act; (3) that Commission environmental impact studies or Environmental Assessments for Lookout Mountain are required and "overdue;" (4) that alternative sites exist for locating new antennas for Denver broadcast stations; (5) that citizens are fearful for their safety and for the value of their homes; (6) that broadcasters should be ordered to "show cause," under Section 312(b) of the Communications Act, as to, why they should not cease and desist from violating Section 1.1310 of the Commission's rules; (7) that the constitutional and "common law" rights of Lookout Mountain residents are being violated; (8) that Commission guidelines for human exposure to RF energy were improperly promulgated and are not strict enough to protect human health; and (9) that the proposed LCG should be denied because of blanketing interference problems on Lookout Mountain and the possible negative impact on wildlife preserves, historical sites and endangered species in the area. We now consider these matters. II. DISCUSSION A. Procedural Issues 7. As an initial matter, we note that CARE'sApplication for Review and its supplementary filings raise a number of issues that were not before the staff when it considered CARE's earlier filings in the OET Letter. For example, in its Application for Review and supplemental filings, CARE raises for the first time the questions of historical preservation, endangered species, and blanketing interference. Section l.115(c) of the Commission's Rules states that: "[N]o application for review will be granted if its relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass. 47 C.F.R. § l.115(c). In this case, CARE has not adequately explained why it was unable to raise these matters in a more timely fashion. We cannot allow a party to "sit back and hope that a decision will be in its favor and, when it isn't, to parry with an offer of more evidence. No judging process in any branch of government could operate efficiently or accurately if such a procedure were allowed." Colorado Radio Corp. v. FCC, 118 F. 2d-24, 26 (D.C. Cir. 1941). Therefore, we are not obligated to consider the new matters raised in CARE's filings. However, as indicated below, we have examined the new matters raised by CARE, and we find that CARE has failed to present any relevant evidence or law demonstrating that we should not have granted the D~ applications_. 3 8. CARE also requests that the Commission seek public comment on its Application for Review. As detailed herein, the Commission has solicited and thoroughly considered the comments of expert health and safety agencies and the public in adopting its radiofrequency radiation health and safety guidelines, in general. Additionally, the Commission has fully considered all the issues raised and briefed by CARE with respect to the siting of communications towers, including, in particular, the proposed LCG tower.